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Speakers discuss art of give-and-take at law program on negotiations |
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Jim Winkler |
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Jun 19, 2008
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When business deals, family disputes or labor negotiations reach an impasse, a variety of strategies and techniques are available to help the parties reach agreement, five speakers told Toledo-area attorneys, mediators and others at a May 30 continuing legal education program, “Getting Past Deadlock.”
Sponsored by the Toledo Bar Association, UT College of Law, and Toledo Area Chamber of Commence, the program featured talks by Nancy Hardin Rogers, dean of Ohio State University’s Moritz College of Law and the state’s interim attorney general; Douglas E. Ray, UT College of Law dean and professor; Robert Hopperton, UT professor of law; James S. Petas, Toledo Municipal court senior mediator; and Toledo attorney Paul T. Belazis.
Rogers spoke two days after being named to the state’s top law post by Gov. Ted. Strickland.
“The topic is at the heart of the lawyering profession,” Ray explained in introductory remarks. “Society expects lawyers to be problem solvers, to resolve disputes and to be society’s peacemakers.”
The speakers discussed key strategies used in integrative bargaining and mediation that are helpful whenever parties trying to work out a deal reach a stalemate.
Successful mediations are more likely if the parties work to identify barriers to agreement, including inconsistencies in approach, poor preparation, poor communication, and differences among the parties in areas such as risk preferences and time constraints, according to Hopperton.
Power differences between parties have significant impact on negotiations, Balazis noted. For example, large, wealthy corporations often can afford to take hard-line positions. Disputes involving deeply held, fundamental principles also can be thorny, and emotions such as fear and anger also can get in the way. Another barrier is aversion to risk. Parties with little aversion to risk will be more inclined to move early on a deal and will take more chances. Those who are risk-averse are more likely to take a slower approach.
Hopperton discussed the concepts of “BATNA” and “ZOPA” that provide a way of organizing and prioritizing negotiation positions.
“BATNA” is an acronym for the “best alternative to a negotiated agreement.” It is the alternative deal to the one that a party is negotiating. The BATNA is a party’s bottom line, an indicator when it’s time to walk away. Parties also must always be aware of their greatest weapon — the ability to walk away from a deal.
“ZOPA ” is the acronym for the “zone of possible agreement,” the bargaining range created by the values of each negotiating party.
Using these concepts will make it easier for parties to spot issues that divide them, add and subtract issues, invent and explore new options for settlement, and appreciate the risks, opportunities and costs that each party faces if a settlement isn’t reached, he explained. Often times, the end result is development of new solutions the parties hadn’t considered before — “expanding the pie.”
Rogers, who will serve in the attorney general’s post until a special election is held in November, noted the mediator’s role is to help the parties find a solution, not to act
as a judge. Successful resolutions of disputes and conflicts, she said, are often the result of understanding the other side’s position. Negotiations should focus on the parties’ interests, which motivates people, rather than their positions.
When an impasse looms, the mediator and the parties “should keep going and go behind the position and turn them into interests,” she said. Mediations are dynamic, and each side has to keep considering its position in the light of new information.
Good negotiators and mediators, she said, get to know the parties beforehand, understand their motivations and interests before talks begin, and make sure there is trust in their communication.
Mediators exert tremendous control and shape the way issues are discussed by the parties, she underscored. They can buffer the parties’ communications, clarify and prioritize their underlying interests, occasionally step back and look at the negotiation more broadly, offer a range of possible solutions, highlight areas of agreement, remove the psychological burden from one party making a concession, and encourage the parties to think about the costs and advantages of reach an agreement. They also can be a source of settlement proposals, condition the parties to accept less-than-perfect proposals, and assure the parties that progress is being made.
Good mediators also will summarize periodically to recap what agreements have been reached and to clarify which areas of disagreement remain, or to generally remind all of the parties of previous settlement offers or other information of importance, she said.
Speaking about valuable lessons learned from labor disputes, Ray said that an important goal in negotiations is to resolve disputes in a way so that all sides feel they’ve won and that the agreement has value for each party.
“”Make it easy for the other side to agree,” Ray emphasized. “Figure out the story that the other side can carry back to its membership that will justify an agreement.”
He noted that negotiators must be aware of the glare of the public spotlight and that many different groups — whether they are shareholders, bargaining-unit members, family members or the general public — are watching.
“Everyone is on stage,” Ray noted. “What people do in negotiations will be reported to others.
“It is important to leave room for concessions so the other side feels they have earned something, and both parties feel that they fought and earned the best deal they could,” he said.
The best negotiators are “good listeners” and “good persuaders,” who have the ability to be quick readers of situations and people, according to Ray.
“There is an art to listening,” Ray said. “If you show you have respect and collegiality for the other side, you will learn a lot. Ask questions and look and act like you’re interested.”
He added that there are benefits to breaking down positions for issue-by-issue bargaining and addressing the easiest issues first.
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